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Criminal P&E > Crim P&E Review > Flashcards

Crim P&E Review Flashcards

1
Q

WARRANTS & ARRESTS

How many days to the Police have to execute a search warrant, and how is it calculated?

A

Police have 3 days to execute a search warrant, excluding day of issuance and execution.

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2
Q

WARRANTS & ARRESTS

What must an arrest warrant include? (4)

(SOT-N/DP-O(N)-Signed)

A

An arrest warrant must:

  1. Be made in the name of “The State of Texas”
  2. Name the person to be arrested (or describe person if name is unknown)
  3. State that the person is accused of an offense against the laws of Texas and name that offense
  4. Signed by a magistrate
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3
Q

WARRANTS & ARRESTS

What must a search warrant have? (3)

(APC TO Specify PIO)

A

A search warrant must be based on PC and supported by an affidavit based on officer’s personal knowledge or trustworthy information (affidavit must allege the informant’s reliability and basis of knowledge).

  1. Sufficient facts to establish PC that a specific offense has been committed.
  2. The specifically described items to be searched for and seized constitute evidence of that offense OR that a particular person has committed that offense and the items are at or on the particular person.
  3. The place or thing to be searched.
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4
Q

WARRANTS & ARRESTS

When must the arrested individual be taken before the magistrate?

A

A person who has been arrested must be taken before a magistrate no later than 48 hours after arrest. This can be accomplished through closed circuit television.

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5
Q

WARRANTS & ARRESTS

Does the exclusionary rule apply to private citizens?

A

If a private citizen obtains evidence in a way that would be illegal if done by a police officer, then the exclusionary rule does not apply to that evidence, even when the citizen is not acting at the behest of the police.

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6
Q

WARRANTS & ARRESTS

How many warrants needed for the arrest of a person and search/seizure of identified items?

A

A single warrant may be issued for both the arrest of a person and search/seizure of identified items.

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7
Q

JURISDICTION & VENUE

Where are felonies tried?

A

Felonies are tried in Criminal District Court.

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8
Q

JURISDICTION & VENUE

Where is the default venue?

A

The default venue for a criminal offense is the county where the offense occurred.

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9
Q

JURISDICTION & VENUE

What is the SOL for criminal offenses?

A

The SOL for presenting an indictment is 3 years from commission of a felony, or 2 years from the commission of a misdemeanor.

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10
Q

CHARGING INSTRUMENTS

What is a complaint?

A

A complaint is a written affidavit brought by an individual alleging a criminal act.

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11
Q

CHARGING INSTRUMENTS

What is a Class C misdemeanor?

A

A criminal offense punishable by a max fine of $500 is initiated by filing a complaint with the municipal or justice court.

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12
Q

CHARGING INSTRUMENTS

Information is:

A

An information is a written statement brought by the state charging the D with a misdemeanor criminal act. Must be accompanied by an affidavit.

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13
Q

CHARGING INSTRUMENTS

How are class “A” and “B” misdemeanors are initiated?

A

Class “A” and “B” misdemeanors are initiated by filing an information in county court.

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14
Q

CHARGING INSTRUMENTS

What is an indictment, can it be waived, and if so when?

A

An indictment is a written statement brought by a grand jury alleging a felony criminal act. May be waived by D for any noncapital felony, in which case, the felony may be prosecuted by the filing of an information.

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15
Q

CHARGING INSTRUMENTS

How to challenge a defective indictment?

(Quash WB Defect)

A

To challenge a defective indictment, the defense must file a motion to quash, which must (Quash WB Defect)

(1) be in writing,
(2) filed before trial begins,

and

(3) specify the claimed defect.

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16
Q

GRAND JURIES

Who has the power to impanel a grand jury?

A

A District Court Judge has the power to impanel a grand jury, or “convene” a grand jury.

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17
Q

GRAND JURIES

Where are grand jury and petit jury are formed from?

A

A grand jury and petit jury are formed by summons from a fair cross section of the community.

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18
Q

GRAND JURIES

How to challenge the jury array?

A

Two bases for challenging the array from which the grand jury is selected are that

(1) an improper method was used to select the array,

or

(2) the official who summoned prospective jurors acted corruptly in doing so.

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19
Q

GRAND JURIES

How many qualified individuals are needed to serve?

A

Once at least 16 prospective grand jurors are qualified, the court will select and impanel 12 to serve and 4 to be alternates.

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20
Q

GRAND JURIES

Who may be present during grand jury proceedings? (6)

(GBP-WIS: Great Britain Protect Wales, Ireland, and Scotland)

A

While the grand jury is conducting proceedings, only 6 people may be present:

  1. Grand jurors
  2. Bailiffs
  3. Prosecutor
  4. Witnesses (while being examined)
  5. Interpreters (if necessary)
  6. Stenographer (or person recording)
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21
Q

GRAND JURIES

Who may question a grand jury witness?

A

Only the prosecutor or the grand jury members may question a grand jury witness.

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22
Q

GRAND JURIES

Can a prosecutor can compel D to appear at the grand jury?

A

Yes. A prosecutor can compel D to appear at the grand jury, but cannot compel him to answer incriminating questions.

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23
Q

GRAND JURIES

What warnings must be given to D or suspect if subpoenaed to testify before the grand jury? (6)

(LAROSA)

A

If a D or a suspect is subpoenaed to testify before the grand jury, he must be given 6 warnings:

  1. His testimony is under oath.
  2. If he falsely answers a material question, there is a risk of an aggravated perjury prosecution.
  3. Right to refuse to answer any incriminating questions.
  4. Right to have a lawyer present outside the chamber for advice before answering questions.
  5. Any testimony could be used against him in a subsequent proceeding.
  6. Right to an appointed attorney if indigent.
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24
Q

GRAND JURIES

Does the accused or suspect have an explicit right to address the grand jury?

A

No. An accused or suspect has no explicit right to address the grand jury and may only do so with consent of prosecutor.

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25
Q

GRAND JURIES

How many jurors are required to issue an indictment?

A

At least 9 grand jurors must agree to indict (true bill).

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26
Q

GRAND JURIES

Can a prosecutor seek a re-indictment?

A

Yes. If a grand jury issues a no-bill, there is no time limit for a prosecutor to seek a re-indictment.

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27
Q

GRAND JURIES

Who can participate in grand jury deliberations?

A

During deliberations on indictment, only the members of the grand jury may participate.

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28
Q

GRAND JURIES

Can the prosecutor be present during grand jury deliberations?

A

The grand jury may ask advice from prosecutor about the law, and may ask question about the grand jury duties, but the prosecutor may not be present when the grand jury is deliberating.

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29
Q

GRAND JURIES

Do the rules of evidence apply to grand jury proceedings?

A

In general, the rules of evidence do not apply to grand jury proceedings. The grand jury may hear hearsay evidence as well as evidence that was illegally obtained, but a witness is allowed to assert an evidentiary privilege.

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30
Q

EXAMINING TRIALS

When is a person entitled to an examining trial?

A

An individual who has been arrested for a felony but not yet charged by an indictment is entitled to an examining trial.

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31
Q

EXAMINING TRIALS

What rights does the accused have at an examining trial? (5)

(C-US-PCS)

A

At an examining trial, the accused has the following rights:

  1. To be represented by counsel
  2. To be present when witnesses are presented
  3. Confront and cross-examine witnesses
  4. Subpoena witnesses
  5. Make an unsworn statement (in a signed writing) before any witnesses are examined and/or give testimony
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32
Q

EXAMINING TRIALS

When is a D entitled to a court appointed attorney?

A

An indigent D is entitled to have an attorney appointed in an adversarial judicial proceeding that may result in punishment by confinement.

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33
Q

BAIL BONDS

What is a surety bond?

A

A surety bond is a written understanding to secure D’s appearance in court entered into by the D and his sureties.

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34
Q

BAIL BONDS

What is a cash bond?

A

A cash bond is a written undertaking to secure the D’s appearance in court but the D, not a surety, makes a cash deposit with the court in the amount of the bond.

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35
Q

BAIL BONDS

What is a personal bond?

A

A personal bond is a written promise by D to appear in court to answer the criminal accusations that is secured only by D’s promise to pay the bond amount if he fails to appear.

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36
Q

BAIL BONDS

What is a recognizance bond?

A

Recognizance may be granted by a magistrate if D is

(1) charged with a fine-only misdemeanor,

and

(2) has no convictions for felonies or misdemeanors punishable by jail time.

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37
Q

BAIL BONDS

What factors does a court consider when determining bail amount?

(HON DF)

A

In determining the amount of bail, the court must consider: (HON-DF)

  1. What amount is high enough to give reasonable assurances that D will appear
  2. Requirement that bail cannot be used as an instrument of oppression
  3. Nature and circumstances of the offense
  4. D’s ability to make bail (proof may be taken)
  5. Future safety of a victim and community
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38
Q

BAIL BONDS

What may a court not consider when making a determination of indigence?

A

The court may consider many factors in determining whether D is indigent (i.e., income, assets, debts, expenses, and dependents). However, the court is not permitted to consider whether D has posted, or is capable of posting bail, in determining indigence, except to the extent that it reflects on the factors.

39
Q

BAIL BONDS

What recourse does a D have if bail is excessive?

(amistad: give us us free)

A

A claim of excessive bail is made through a petition for writ of habeas corpus claiming inability to make bail and arguing that X amount is enough to give reasonable assurance that D will appear.

40
Q

PRETRIAL

When are preliminary matters waived?

A

When a criminal case is set for a pretrial hearing, any preliminary matters including a motion for continuance, not raised or filed by D 7 days before the hearing will be waived.

41
Q

PRETRIAL

What must the court warn D of prior to accepting a guilty plea? (4)

(RØB-DAL)

A

Prior to accepting a plea of guilty the court must admonish D of:

  1. Range of punishment possible for the offense
  2. Plea agreement is a recommendation by the prosecution, and the court is not bound to accept it.
  3. Deportation is possible if D is not a U.S. citizen.
  4. If the court accepts or lowers the punishment agreed upon by the parties, the D must get permission from the trial court before appealing any matter except for those raised by written motion prior to trial.
42
Q

PRETRIAL

When must pretrial motions be filed?

A

Any pretrial motions must be filed at least 7 days before a pretrial hearing. The court cannot compel an attorney to present pretrial motions under a different timeline.

43
Q

PRETRIAL

When can a D withdraw his guilty plea?

A

A D may withdraw his guilty plea for a felony any time before the court takes the plea or pronounces judgment on the plea.

44
Q

PRETRIAL

What is work product, and how can D get documents that negate his guilt?

A

Work product is something prepared by an attorney for his own use in connection with the case. The prosecutor must disclose a statement given by D because it is evidence that would negate the D’s guilt. If the prosecutor refuses, opposing counsel is permitted to request the document by filing a motion.

45
Q

PRETRIAL

When can the state file an interlocutory appeal?

A

The state may pursue an interlocutory appeal filed within 20 days of the trial court entering the order to be appealed. The prosecutor must certify to the trial court that the appeal is not for purpose of delay and that the evidence, confession, or admission is of substantial importance.

46
Q

PRETRIAL

Which D witnesses must be disclosed before trial, and when do they need to be disclosed?

A

The defense does NOT have to provide the state with a list of lay witnesses. The court does not have discretion to order D to do so. The defense does have to disclose the names and addresses of any expert witnesses that will be used at trial. Disclosure of witnesses must be made no later than 20 days before trial.

47
Q

PRETRIAL

What needs to be done at trial prior to presentation of evidence?

A

First steps that must be takin in criminal trial prior to presentation of evidence—read indictment and D enters plea.

48
Q

JURIES & TRIALS

Explains D’s options regarding opening statement vs. opining statement

A

D may make his opening statement at the beginning of trial or reserve his right to make opining statement following the close of the state’s case-in-chief.

49
Q

JURIES & TRIALS

What can be done when a witness fails to follow a subpoenae?

A

When a properly subpoenaed witness in a criminal action fails to appear, the party is entitled to have a writ of attachment be issued against the witness. A witness who refuses to obey a subpoena is also subject to contempt or fine.

50
Q

JURIES & TRIALS

When must a trial with multiple Ds be severed? (2)

(PAC)

A

A trial of multiple Ds must be severed if:

  1. There is an admissible conviction against one D or
  2. A joint trial would be prejudicial to any D.
51
Q

JURIES & TRIALS

When must a motion to sever be made?

A

The motion to sever must be made before trial, or if there is a pretrial hearing, by the pretrial hearing.

52
Q

JURIES & TRIALS

How to limit or prevent evidence from being introduced at trial?

A

D should file a motion to suppress to keep the prosecutor from introducing illegally obtained evidence at trial or a nontraditional motion in limine asking the court to rule on admissibility of evidence at trial.

53
Q

JURIES & TRIALS

Is D presumed incompetent, and if not, how can incompetency be suggested?

A

D is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence. Either party, or the court, may suggest by motion that D is incompetent to stand trial.

54
Q

JURIES & TRIALS

Are leading questions allowed during direct examination?

A

Generally, no leading on direct, except if witness is associated with the other party.

55
Q

JURIES & TRIALS

What is the burden of proof?

A

The burden of proof in a criminal trial is beyond a reasonable doubt.

56
Q

JURIES & TRIALS

What must a motion for continuance due to an absent witness contain? (6)

(NAW-DM-DAN)

A

Motion for continuance due to an absent witness must contain:

  1. Name and address of witness
  2. Diligence in attempting to secure the witness’s attendance
  3. Materiality of the testimony
  4. The motion is not made for purpose of delay
  5. Absence was not procured by the defendant
  6. No reasonable expectation that attendance can be obtained in time for trial
57
Q

JURIES & TRIALS

What must the prosecutor produce? (3)

(O DUD) (D = D-PoWeR of D or W) (UD = DOT in Cost Per Click)

A

After receiving D’s timely request, the prosecutor must produce for inspection, electronic duplication, photographing, and copying:

  1. Any offense reports
  2. Any designated documents, papers, written or recorded statements of the D or W, including officers,
    and
  3. Any unprivileged designated documents, objects, or other tangible things that contain material evidence and are in the possession, custody, or control of the state.
58
Q

JURIES & TRIALS

Can a prosecutor withhold information that she does not think will be helpful?

A

Prosecutor cannot withhold information that she does not think will be helpful. Unlike the Brady disclosure obligations, there is no requirement that the material be helpful to D.

59
Q

JURIES & TRIALS

When can D waive the right to a jury trial?

(CA-POW)

A

D can waive the right to a jury trial on the issue of guilt but only if D makes the waiver (CA-POW)

(1) in person,
(2) in writing,
(3) in open court,

and

(4) with consent and approval of both the court and prosecutor.

60
Q

JURIES & TRIALS

When are there unlimited challenges for cause? (11)

(ØVJ CID BIC WIG)

A

Both the state and defense get unlimited challenges for cause if the juror:

  1. Not qualified to vote in the state and county
  2. Convicted of misdemeanor theft or any felony
  3. Under indictment or legal accusation for misdemeanor theft or a felony
  4. Insanity
  5. Physical or mental defect rendering juror unfit for service
  6. Witness in the case
  7. Served on grand jury that issued indictment
  8. Serviced on petit jury in a former trial of the same offense
  9. Bias or prejudice in favor or against defendant
  10. Already established a conclusion on guilt or innocence
  11. Cannot read or write
61
Q

JURIES & TRIALS

If only 1 D, how many peremptory challenges are allowed?

(5-10-15)

A

If there is only 1 defendant then each party gets the following number of peremptory challenges:

  • Death penalty case – 15
  • Other felonies – 10
  • Misdemeanors in district court – 5
62
Q

JURIES & TRIALS

How does the number of alternate jurors impact the number of peremptory challenges?

A

If 1 or 2 alternate jurors are to be chosen, the state and D each get 1 peremptory challenge.

If 3 or 4 alternate jurors are to be chosen, the state and D each get 2 peremptory challenges.

63
Q

JURIES & TRIALS

How and when does reshuffling occur?

A

On request of either party to reshuffle jury, the judge must order the clerk to randomly shuffle the jurors’ names and place them on a new list. Only one shuffle is permitted and must be conducted before voir dire.

64
Q

JURIES & TRIALS

When and why is a judge disqualified from a case?

A

A judge is disqualified if he has an interest in the case, has been counsel for the state or accused in the very same case, or the accused or a party injured is connected to judge by consanguinity or affinity within the third degree. Judge is a victim if bought stock due to CEO’s fraudulent reporting.

65
Q

JURIES & TRIALS

How can a witness be prevented from attending the trial, or discussing testimony w/ anyone except lawyers?

A

The “Rule” means that the court, at the request of a party, or on its own motion, excludes witnesses from attending trial or discussing testimony with anyone except lawyers.

66
Q

JURIES & TRIALS

When can a court exclude a witness that would typically be allowed to remain in the courtroom?

A

At request of a party, the court may order the exclusion of a witness who is a close relative of a deceased victim or guardian of a victim, but only if the court determines that their testimony would be materially affected from hearing others testify at trial. May exclude victim if witness and testimony will be materially affected.

67
Q

JURIES & TRIALS

What kinds of information is the judge not allowed to communicate to the jury once the charge has been given to the jury, and when is the charge given to the jury?

A

When the charge is given to the jury by the judge, the judge may not express any opinions as to the weight of the evidence, sum up the testimony, discuss facts, or use any argument calculated to arouse the jury’s sympathy or passion. Charge is given before closing argument.

68
Q

JURIES & TRIALS

What is a jury poll?

A

A party can ask the judge to poll the jury, which requires the judge to address each juror separately and ask if the verdict is the juror’s own.

69
Q

JURIES & TRIALS

In a felony case, how many jurors must be impaneled and agree on the verdict?

A

In a felony case, 12 jurors must be impaneled and all must agree on the verdict.

70
Q

JURIES & TRIALS

Who normally determines the sentence, and how can D elect to have a jury determine punishment in a noncapital case?

A

Generally, the judge determines the sentence, but D may elect to have punishment assessed by a jury in a noncapital case by making a motion for jury sentencing before voir dire of the jury panel.

71
Q

JURIES & TRIALS

When can prior bad acts be admitted at sentencing?

A

At sentencing, evidence of prior bad acts can only be admitted if shown beyond a reasonable doubt that it was committed by D or that D could be held criminally responsible for it, regardless of whether D has previously been charged with or finally convicted of the bad act.

72
Q

JURIES & TRIALS

How do you preserve sufficiency of evidence challenge for appeal?

A

Evidence is complete when both sides have rested. To preserve a sufficiency of evidence challenge for appeal, a party must move for directed verdict on basis that evidence is insufficient.

73
Q

POST-TRIAL MOTIONS

When must a motion for a new trial be filed?

A

A motion for new trial must be filed no later than 30 days after the date the trial court imposes or suspends a sentence in open court.

74
Q

POST-TRIAL MOTIONS

What is required in order to grant a motion for a new trial based on the verdict?

A

To grant a motion for new trial based on the verdict, the verdict must be contrary to the law and evidence.

75
Q

POST-TRIAL MOTIONS

Can a trial court grant a motion for a new trial on its own accord?

A

No. The trial court may only grant a motion for new trial on D’s motion, not on its own accord.

76
Q

POST-TRIAL MOTIONS

Can a D that has been acquitted bring an ineffective assistance of counsel claim?

A

No. D who has been acquitted cannot bring an ineffective assistance of counsel claim because D cannot show that the result would have been different.

77
Q

POST-TRIAL MOTIONS

Is meeting with, or hiring an atty evidence of guilt?

A

No. Act of meeting with or retaining attorney is NOT evidence of guilt.

78
Q

EVIDENCE

Are statements made in a withdrawn plea, or in plea negotiations admissible against D?

A

No. Neither a withdrawn plea, nor a statement made in a plea negotiation, is admissible against D in a subsequent proceeding.

79
Q

EVIDENCE

When can there be a motion to demand any statement of a witness in the possession of the other party?

A

After a non-defendant witness testifies on direct examination, the party not calling the witness can move to demand any statement of the witness in the possession of the other party. If prosecutor refuses to deliver the report, the judge will either strike the testimony or declare a mistrial. E.g., defense may move for production of a testifying officer’s report who executed the search warrant after he testifies on direct examination.

80
Q

EVIDENCE

Is character evidence admissible?

A

D’s wrongful acts are not admissible to show his criminal propensity. Attorney should object because prior bad acts are irrelevant, that they are not MIMIC evidence, and/or that the probative value of the evidence is substantially outweighed by danger of undue prejudice.

81
Q

EVIDENCE

Can D qualify an expert, and can it be in the jury’s presence?

A

In criminal cases, the judge must permit D to voir dire the prosecution’s experts. Also, voir dire of an expert witness must be conducted outside the jury’s presence.

82
Q

EVIDENCE

When are oral statements to the police admissible?

A

Oral statements to police must be recorded to be admissible.

83
Q

EVIDENCE

Can a spouse be called as a witness?

A

A spouse may be called as a witness for the state in a criminal case when the case involves a crime against D’s spouse, a member of the household of either spouse, any minor, or bigamy.

84
Q

EVIDENCE

Can the state call D as a witness, and what should you do if they do?

A

The state may NOT call D as a witness. If they try to, in order to preserve error, defense counsel should object, make a motion for jury to disregard the prosecutor’s comment, and move for a mistrial on the ground that the curative instruction was insufficient to ensure a fair trial.

85
Q

EVIDENCE

When can D be convicted based on the testimony of an accomplice?

A

D can be convicted on the testimony of an accomplice only when the accomplice’s testimony is corroborated.

86
Q

EVIDENCE

Does doctor-patient privilege apply to Texas criminal cases?

A

No. In Texas criminal cases, there is no physician-patient privilege.

87
Q

EVIDENCE

When can a witness, including D, be impeached by evidence of a prior felony or crime involving moral turpitude?

A

A witness (including defendant) may be impeached by evidence of a prior felony or any crime involving moral turpitude, as long as the probative value of the evidence outweighs its prejudicial effect.

88
Q

EVIDENCE

When must business records be served on opposing party in order for it to be admitted as self authenticating?

A

At least 14 days before trial, the proponent of a business record must serve a copy of the record and the custodian’s affidavit on the opposing party in order to admit such evidence as self-authenticating.

89
Q

EVIDENCE

When can a victim impact statement be presented?

A

After the sentence has been pronounced, a victim, guardian of the victim, or a close relative of a deceased victim has the right to appear in person and present to the court and the D a victim impact statement their views on the offense, the defendant, and the effect it has had on them.

90
Q

EVIDENCE

If a conviction is on appeal, is it admissible?

A

No. Convictions on appeal are NOT admissible.

91
Q

PROBATION & COMMUNITY SUPERVISION

What is deferred adjudication?

A

Deferred adjudication is the judicial deferral of further proceedings without adjudication of guilt and placing D on community supervision.

92
Q

PROBATION & COMMUNITY SUPERVISION

When can a judge grant deferred adjudication?

A

A judge may grant deferred adjudication after receiving a guilty or no contest plea, hearing evidence, and finding that it substantiates the D’s guilt, if the judge believes that the best interest of justice, society, and D will be served.

93
Q

PROBATION & COMMUNITY SUPERVISION

What is probation?

A

Probation is suspending D’s sentence or fine after conviction or acceptance of a guilty or no contest plea

and

D is placed on community supervision.

94
Q

PROBATION & COMMUNITY SUPERVISION

In order for a jury to recommend probation, what must D file before trial?

A

In order to allow the jury to recommend probation, before trial, D must file a sworn motion with the judge stating that D has never been convicted of a felony.

Criminal P&E (1 decks)

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